Thomas Nchagwa 0001

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA CRIMINAL APPEAL NO. 000020481 OF 2024 (Arising from the District Court of Serengeti (Hon. J. O. Ndira-SRM) in Economic Case No. 42 of2023) BETWEEN THOMAS NCHAGWA @MTUGUTU........................................................ APPELLANT VERSUS THE REPUBLIC.................................................................................. RESPONDENT JUDGMENT OF THE COURT 12/12/2024 & 05/02/2025 Kafanabo, J.: This is an appeal emanating from the District Court of Serengeti at Mugumu (hereinafter referred to as the 'trial Court'), in Economic Case No. 42 of 2023 in respect of a judgment dated 30th May 2024. A brief background of the matter as gathered from the trial Court's record is that on 27th May 2023 at 10.00 a.m., the conservation rangers from the Serengeti National Park were on patrol at Mto Grumeti area in the Serengeti National Park, and they arrested two persons namely; Thomas Nchagwa @ Mtugutu (hereinafter referred to as the Appellant) and Mnanka Sarya Matiko, not part of this appeal, (hereinafter referred to as the conspirator) and, allegedly, found them in possession of two knives and three pieces of a dried meat of a wildebeest without a permit. The conservation rangers took the coordinates of the alleged point of arrest and the accused were taken to the i Mugumu Police Station where a police case was filed and assigned reference number MUG/IR/1450/2023. It followed that the Appellant herein, and the conspirator were jointly arraigned before the District Court of Serengeti at Mugumu on an indictment containing two counts. In the 1st count, the Appellant and the conspirator were jointly charged with the unlawful possession of weapons in the National Park contrary to section 24(l)(b) and (2) of the National Parks Act, Cap. 182 R.E. 2002. It was alleged that on the 27th day of May 2023 at Mto Grumeti area, into the Serengeti National Park, within the Serengeti District in the Mara Region the Appellant and the conspirator were found in unlawful possession of weapons (two knives) without a permit, and failed to satisfy an authorized officer that the same were intended to be used for purposes other than hunting, killing, wounding or capturing of wild animals. In the second count, they were charged with unlawful possession of government trophies contrary to sections 86(1) and (2) of the Wildlife Conservation Act, [Cap 283 R.E. 2022] read together with paragraph 14 of the First Schedule to, and sections 57(1) and 60(2) of the Economic and Organised Crime Control Act [Cap.200 R.E. 2022]. In this count, it was alleged that on the 27th day of May 2023 at Mto Grumeti area, in the Serengeti National Park, within the Serengeti District in the Mara Region, the Appellant and the conspirator were found in unlawful possession of government trophies, namely three pieces of dried meat of wildebeest, valued at USD 650, equivalent to TZS 1,157,750/= the properties of the United Republic of Tanzania. 2 The Appellant and his conspirator pleaded not guilty to the charges, hence the matter proceeded to a full trial. Upon closure of the evidence for both sides, the trial Magistrate was satisfied that the Respondent proved her case beyond a reasonable doubt. Accordingly, the Appellant and his conspirator were convicted of the above-mentioned offences. It is also noted that the conspirator was convicted in absentia because he had jumped bail. The Appellant herein was thus sentenced to serve two (02) years imprisonment for the first count, and twenty (20) years imprisonment for the 2nd count. The Appellant was dissatisfied with the said decision and thus preferred the present appeal. The Appellant filed the present appeal marshalling five (5) grounds of appeal whose substance is reproduced herein below, as follows: 1. The trial Magistrate erred in law and fact to convict and sentence the Appellant because he did not sign a certificate of seizure that was prepared by PW1, the conservation ranger. 2. The trial Magistrate erred in law and fact to convict and sentence the Appellant relying on wrongly admitted evidence tendered by PW4, H.90 D'CpI Faraja, identifying three pieces of dried meat as that of wildebeest with skin while the charge sheet on the 2nd count read that there were three pieces dried meat of wildebeest. 3. The trial Magistrate erred in law and fact by convicting and sentencing the Appellant by relying on wrongly admitted evidence from PW1 and PW2 who identified the three pieces of dried meat as that of wildebeest while PW1 and PW2 were not experts in wildebeest conservation. 3 4. The trial magistrate erred in law and the fact to convict and sentence the Appellant because the prosecution did not prove the case beyond a reasonable doubt. 5. The trial magistrate erred in law and the fact to convict and sentence the Appellant without calling key witnesses like justice of the peace. Having restated the substance of the grounds of appeal, the Court will then, albeit briefly, review the submissions made by both parties as regards the appeal. At the hearing of the appeal the Appellant entered an appearance in person and the Respondent was represented by Ms. Agma Haule, a learned State Attorney. In support of the Appeal, the Appellant was very brief, he submitted that he had presented five grounds of appeal which he implored the Court to consider in the determination of the Appeal. He also prayed that the court be pleased to release him because he has been incarcerated for a long time. Opposing the Appeal, the learned State Attorney, commenced with the first ground of appeal and submitted that it was not correct that the Appellant did not sign the certificate of seizure which was admitted as exhibit Pl. The Appellant signed the certificate of seizure and, on page 16 of the trial court proceedings, the Appellant did not object to the admissibility of the certificate of seizure. Also, if the Appellant had any objection that he was not the one who signed the document he should have objected in the trial Court. If he failed to object in the trial court during the admissibility he is barred from raising it at this stage. She prayed for dismissal of the ground of appeal for want of merits. 4 As regards the 2nd ground of appeal, the Appellant protests against the admission of wrong evidence tendered by PW4. It was argued that the Appellant said that there is inconsistency in the evidence of PW4 because he said that the evidence of PW4 is about the skin of wildebeest, but on the other parts of his testimony it is wildebeest meat and not the skin. It was submitted that on page 13 of the proceedings from the e-Case Management System, there is no such inconsistency. Also by reviewing the evidence of PW1 and PW2 both of them are talking about meat, not skin. Also PW3, the valuer, on page 10 of the proceedings also identified the meat of the wildebeest. There is no skin mentioned. With regards to the 3rd ground of appeal, it was submitted that the Appellant is of the view that PW1 and PW2 evidence was wrong because they testified on the identification of the meat whilst they were not experts. This is answered on page 17 of the proceedings where PW1 testified that they learned about the identification of the meat and that he smelled the fat of the meat and was satisfied that it was the meat of the wildebeest. Therefore, PW1 properly identified the meat as that of wildebeest. Also, PW3 who is an expert was called and testified on how he identified the meat. It was argued that the valuer cum identifier was the right person to identify the meat, as the arresting officers suspected the dried meat and the valuer cum the indetifier concluded that it was the meat of the wildebeest. Therefore, it was submitted that there is no wrong evidence that was admitted, as the arresting officer's suspicion was confirmed by the valuer/indentifier, so the offence against the Appellant was proved. 5 After the third ground of appeal, the learned State Attorney argued the fifth ground of appeal where she submitted that the Appellant complained about not calling key witnesses including the justice of peace. Given the facts of the case, there was no need to call the justice of the peace, and it was submitted that if the Appellant thought that the justice of the peace was important he could have called him as a witness. It was argued that under section 143 of the Evidence Act, Cap 6 R.E. 2019, the prosecution was not bound to call a particular number of witnesses, therefore four witnesses were enough, and there was no need to call the justice of the peace. In respect of the 4th ground of appeal, it was submitted that the prosecution proved its case beyond reasonable doubt. It called four witnesses, PW1 and PW2 were arresting officers, PW3 was the valuer and identifier of the government trophy, and PW4 was the investigator of the case. It was argued that their testimony, plus five exhibits were sufficient to prove charges against the Appellant. It was also taken into account that the Appellant was taken to the Magistrate and heard before the exhibit was destroyed. The case of Buruka Leken Ole Ndidai v. Republic, Criminal Appeal No. 459 of 2020 was cited to augment the submissions. Having the submissions of the parties in place, this Court will commence with the fourth ground of appeal which the Appellant challenges that the case against him at the trial Court was not proved beyond a reasonable doubt in terms of section 3(2)(a) of the Evidence Act, Cap. 6 R. E. 2019. In determining whether the Respondent proved their case beyond a reasonable doubt, this Court will, first, consider whether the dried meat 6 allegedly found with the Appellant was a government trophy in terms of section 86(1) and (2) of the Wildlife Management Act (supra) (creating the offence of unlawful possession of government trophy) read together with) section 3 (definitions of'animal'and 'trophy') and section 85 (defining 'government trophy') all of the same Act. That is to establish whether it was a bushmeat of wildebeest species as alleged by the Respondent. According to evidence on record PW1, a conservation ranger working for the Serengeti National Park, with 13 years' experience, testified that on 27/05/2023 when on patrol at Mto Grumeti area, in the Serengeti National Park, they saw the Appellant and his conspirator, they arrested them and they found them in possession of three dried pieces of wildebeest meat and two knives without a permit. In cross-examination by Mnanka Sarya Matiko (the conspirator who was the 1st accused in the trial Court), PW1 testified that the conspirator was carrying three pieces of dried meat of the wildebeest and two knives, and the Appellant was carrying three pieces of dried meat. He testified that he identified the wildebeest dried meat by the odour of the fat in the meat. PW2 reiterated the testimony of PW1, but in cross-examination, he testified that they saw the conspirator and the Appellant carrying luggage and when they drew closer to them, the conspirator and the Appellant threw the luggage away and he did not know who between the Appellant and the conspirator was carrying the dried meat of wildebeest. He also testified that he identified the wildebeest meat through his experience. PW3, the valuer and identifier of the dried meat of the wildebeest, testified that he has a diploma in wildlife from Mweka Wildlife College, and 7 whose duty is to identify and conduct a valuation of government trophies. He testified that on 29/05/2023, he was at Mugumu Police Station to identify and conduct the valuation of the government trophy after being summoned by D'CpI Faraja in respect of police case No. MUG/IR/1450/2023. He identified three pieces of dried meat of the wildebeest because they had gray to darker brown colour, whitish meat fat, and meat fibers were compacted and on a large scale. Thereafter, he conducted a valuation equal to one animal killed which was TZS 1,517,750/=. He filled out a trophy valuation certificate which was admitted by the trial Court as exhibit P3. In cross- examination, PW3 testified that he used his education, experience, and eyes to identify the three pieces of dried meat of the wildebeest. The testimony of PW4 was also relevant to the question of identification. He testified that he handed over the three pieces of meat of a wild animal to PW3 for identification and valuation. After identification PW3 handed over to him the said three pieces of dried meat and he told him that they were of a wildebeest. In light of the above testimonies, it is undoubtedly clear that the dried meat was identified by PW3, PW2, and PW1 based on its morphology and odour of its fat. However, these are exceptionally traditional and unreliable methods of identification of bushmeat especially when it has been processed (i.e. not in the form of a recognizable carcass and has no common identification mark), and when it is to be used as an exhibit in proving criminal offences carrying a heavy penalty of twenty (20) years of penal servitude. The conservation rangers and the prosecution, in general, should do more than morphology, odour, and gaze identifications in order to prove 8 offences of unlawful possession of government trophies, including bushmeat, allegedly committed by the suspected poachers. This requirement becomes inevitable when the bushmeat in question has been processed or dried and is without any unique or common indicative feature of identification such as clear-cut skin marks, the head of an animal, or other familiar animal parts. It follows that since the government trophy in question is dried meat, a cursory research landed this Court on clause 3.3 of the East African Standard on Dried Meat Specification (EAS 1063:2022) 1st Edition, which specifies requirements, sampling and test methods for dried meat intended for human consumption, and dried meat is defined as follows: "meat product that has undergone water loss to achieve desired moisture content obtained through appropriate techniques such as but not limited to sun drying, solar drying, oven drying, air drying, heat drying, and freeze drying." Given the above definition, it is clear that dried meat is processed meat that has undergone any of the techniques mentioned in the above definition which, undoubtedly, transforms its colour, odour, texture, and morphology in general from that of raw meat. Common sense also dictates that even processed (chopped and/or sliced) raw meat is also difficult to identify by simply considering its morphology. Besides, in the modern era of copiousness of science and technology identification of bushmeat or any other wildlife product in the criminal justice system should, inevitably, be scientific. In the present case, PW3 did not, 9 albeit briefly, explain the procedure he undertook in identifying the three pieces of dried meat and establishing, first, the same to be bushmeat and second to be that of wildebeest. He simply took the three pieces of meat and returned the same to PW4 telling him that they were of a wildebeest. This was, outrageously, the way PW3 identified the dried meat to be that of wildebeest, discounting the fact that it was dry and with no naked indicative special feature that could be used as a basis for identification. It is generally accepted that in some cases, it is relatively easy to identify bushmeat when the animal is in the form of a whole fresh carcass. In the majority of cases, however, it is difficult to identify bushmeat, for example when the carcass is pierced or chopped. This is becoming a very frequent way to transport the meat because it is easier to handle and also more difficult to identify the species (See Bushmeat Information and Identification Guide; accessed at https://cites.org/sites/default/files/vc- files/files/bushmeat-FSVO.pdf) on 24/01/2025. For the avoidance of doubt, it is also generally accepted that various scientific methods could be used to prove that the three pieces of dried meat in question were bushmeat and that of the wildebeest as alleged. In the article written by Yun-Hsiu Hsu, et al, (2021) titled "Bushmeat Species Identification: Recombinase Polymerase Amplification (RPA) Combined with Lateral Flow (LF) Strip for Identification of Formosan Reeves' Muntjac (Muntiacus reevesi micrurus). Animals (Basel)...", accessed at https://pmc.ncbi.nim.nih.gov/articies/PMC791I887/ on 23/01/2025, it is written that: io "Illegal hunting of wild animals and the consumption of bushmeat are recognized not only as a threat to biodiversity, but also as a risk for transmitting zoonotic diseases. Illegal sales of meat products from... is a growing issue in Taiwan, bringing forth the demand for a fast and cost-effective technique for meat species identification. In this study, a new recombinase polymerase amplification combined with a lateral flow strip to identify ... meat products was described. This method only requires minimal sample preparation and an isothermal heating process. The result can be interpreted by the naked eye within 30 min. The authors of the said article further expounded that: "Illegal bushmeat consumption may lead to the transmission of zoonotic diseases to humans and threaten wildlife biodiversity. The Taiwan Wildlife Conservation Act prohibits hunting wild animals without authorized permission. Still, wildlife is often hunted and sold to restaurants illegally, giving rise to the demand of an available on-site diagnostic tool to identify meat species in food, quickly and accurately." The above bolded observation of the authors of the article is also relevant in the circumstances of the present case and other cases of similar nature in that, it is vital for the conservation rangers through the conservation authorities to be equipped with at least on-site diagnostic tools when on patrol, or at particular stations within the national parks or game reserves for purposes of immediate identification of bushmeat animal species 11 or specie of any other wildlife product with accuracy and certainty in the interest of justice. Moreover, in Megan A. Schilling, et al, (2020) "Molecular species identification ofbushmeat recovered from the Serengeti ecosystem in Tanzania!' accessed on 24th January 2025 at https://dspace.nmaist.ac.tz/bitstream/handle/20.500.12479/949/JA LiSBE 2020%20.pdf;jsessionid=C7A656172B73702C3E9FB4A20DEEC640?sequenc e=l, the authors, in the abstract, have stated that: " Bushmeat harvesting and consumption represents a potential risk for the spillover of endemic zoonotic pathogens, yet remains a common practice in many parts of the world. Given that the harvesting and selling of bushmeat is illegal in Tanzania and other parts ofAfrica, the supply chain is informal and may include hunters, whole-sellers, retailers, and individual resellers who typically sell bushmeat in small pieces. These pieces are often further processed, obscuring species-identifying morphological characteristics, contributing to incomplete or mistaken knowledge of species of origin and potentially confounding assessments of pathogen spillover risk and bushmeat offtakd'. The above excerpt makes it clear that morphological characteristics of bushmeat may change by processing and thus may lead to misidentification of a bushmeat. Megan A. Schilling, et al, 2020 (supra) write that: " Due to the illegal nature of bushmeat hunting in Tanzania, the supply chain may involve numerous players between the 12 hunter and consumer, which could include, whole-sale sellers, retailers, and other community members who all have the potential to contribute to the mistaken or incomplete knowledge of the species of origin. Opportunities for morphological identification of bushmeat are limited since specimens are either sold as small pieces or processed in a manner that obscures indicative features." Even though the above excerpts and citations come from articles whose aim was not to discuss the identification of bushmeat species to be used as evidence in Courts of law, they provide a treasure of the importance of proper and scientific identification of bushmeat as there is a possibility of mistaken identification because of various processes the bushmeat undergoes in order to obscure its indicative features. Again, in Megan A. Schilling, et al, 2020 (supra) the molecular identification of species was preferred to test the reliability of seller-reported species of origin. The results were that, overall, approximately one-third of the 151 bushmeat samples selected for laboratory confirmation of species of origin were misidentified by the traditional methods of self-reporting. This denotes that the traditional methods of identification of bushmeat, like the one applied by PW1, PW2, and PW3 in the present case, are unreliable. It was further explained that several factors may contribute to the misreporting of bushmeat animal species including reaction to consumer preferences or differences in severity of penalties associated with the poaching of different species. Hunter preferences on where to hunt and what 13 species to target could also influence reporting, the threat of enforcement, species abundance, and proximity to the hunters' home village. The article, Megan A. Schilling, et al, 2020 (supra), further observes that: ''Interestingly, misreporting is significantly more during the dry season in comparison with the rainy season. This difference could be explained as during the dry season, the bushmeat is typically processed under the sun and as it gets dried, it makes it even more difficult to identify the origin." The article went further buttressing that: "Bushmeat is presented in markets in small quantities, which make it difficult to differentiate the species from which it originated. In most cases, processed meat is more similar in appearance regardless of species, which may account for some of the misreporting if sellers are relying on morphological identification of the species." Besides, the scientific methods of identification of dried meat are also preferred in the gazzetted standards of the East African Community. The East African Standard on Dried Meat Specification (supra) in clause 10 provides for methods preferable in meat speciation (a method of analysis for animal species identification in raw, heated, and/or processed meat products offered for sale) as follows: " The identification/isolation ofmeat species shall be done according to the Polymerase Chain Reaction (PCR) test and Enzyme Linked Immuno Sorbent Assay (ELISA) procedure amongst other validated methodd'. 14 Moreover, as regards methods of identification of bushmeat species Yun-Hsiu Hsu, et al, (2021) (supra), explain that there is a variety of analytic methods that have been applied to differentiate animal species of bushmeat, including ELISA, immunochromatography, and Raman spectroscopy. Currently, PCR-based techniques, such as species-specific PCR, and restriction fragment length polymorphism (RFLP). Recently, recombinase polymerase amplification (RPA), a novel nucleic acid amplification method, has been established. The methods of identification of bushmeat animal species were also explored byKilwanila, S.I., 2018; and Mathews, N.O., 2010 in their master's theses to include; morphology, Immunology, molecular identification of species (which include Restriction Fragment Length Polymorphism (RFLPs), Amplified Fragment Length Polymorphism (AFLPs), Randomly Amplified Polymorphic DNA (RAPDs), DNA Barcoding, Mitochondrial DNA Genes). However, morphology has been described as unreliable on any processed meat as it is traded in diverse forms from their original and thus difficult to identify or may lead to mistaken identification. Other useful observations on the identification of bushmeat were provided by Stella Bitanyi, et al, 2012, in an article titled: Molecular identification versus local people's information for accurate estimates of bushmeat utilization from the Serengeti ecosystem, Tanzania!' published in the African Journal of Biotechnology Vol. 11(1), pp. 243-252, 3 January, 2012 accessed at file:///C.7Users/hp/Downloads/ajol- file-journals 82 articles 93064 submission proof 93064-973-237373-1- 10-20130823.pdf, the authors wrote that: 15 "Species identification of bushmeat in western Serengeti has traditionally been based on information given by localpeople. Relying on people's identification alone might not give the precise information needed as the bushmeat trade is sometimes complex and poorly understood (Bowen-Jones et al., 2002). The true species identity of bushmeat samples might be subjected to errors that arise in the chain of trade as the meat passes through many middle traders before reaching the consumers....The use of DNA diagnostic techniques has proven to be effective as a species identification tool, overcoming the problems of traditional morphology based identification methods (Wong and Hanner, 2008)." Bitanyi, et al, 2012 further wrote that: "This study has revealed relatively low accuracy in the species information given by the local people providing the bushmeat samples. The low identification capacity reflects probably the general difficulties in organoleptic identification of bushmeat samples. Most of the present bushmeat was processed as dried meat which made the species identification extremely difficult" In light of the above well-researched scholarly articles, it is clear that the morphological identification method for purposes of bushmeat animal species identification is unreliable. It is also a view of this Court that, morphological identification of bushmeat animal species is exceedingly 16 untrustworthy when it comes to identification of processed bushmeat (raw and/or dried) for purposes of being used as evidence in criminal trials whose proof is beyond reasonable doubt. However, it is also clear that there are other scientific methods of identification of bushmeat that are more reliable and acceptable worldwide. It follows that the morphological method used by PW1, PW2, and PW3 in identifying the animal species of the three pieces of dried meat to be that of wildebeest is unreliable. This is taking into account the fact that PW3, the purported expert on the identification of animal species, did not even explain the procedure that he adopted in identifying the animal species of the said dried meat. The said PW3 also did not explain how the said three pieces of dried meat differ from the dried meat of a cow, goat, or any other domesticated animal, that is what were the scientific features that distinguished the dried meat of wildebeest from other animals outside the conservation mandates. Worst enough, even PW3 (the valuer and identifier of the dried meat) did not even explain how he became an expert in bushmeat animal species identification. He simply testified that he was taught how to identify bushmeat animal species when he was pursuing his diploma in wildlife management and no further details were provided. At this juncture, it is vital to point out that, it is high time for the relevant wildlife conservation authorities to recruit, if they have not done so, wildlife conservationists with expertise in animal clinical science, veterinary science, molecular biology, and biotechnology to mention a few in order to 17 ensure that scientific investigations are done in order to properly identify animal species of a bushmeat or any other wildlife product found with a suspect. Alternatively, they should use the Government Chemist Laboratory effectively, the aim being that properly investigated violations of wildlife conservation laws would be of great assistance in the dispensation of justice in the criminal justice system. The said authorities should also invest in necessary diagnostic laboratories and on-site diagnostic equipment for purposes of expeditious identification of various wildlife animal product species. This would be of great assistance in ensuring that only deserving suspects are arrested, arraigned in courts, prosecuted, and convicted according to the relevant laws and procedures. Otherwise, if the Court would unquestionably accept and rely on morphological identification of animal species based on processed bushmeat or other wildlife products, the undesired practice would, undoubtedly, lead to unwarranted convictions of innocent persons who will be sentenced to penal servitude undeservingly which is a momentous and irreparable injustice. Moreover, what transpired in the identification of the bushmeat animal species in the present case, calls for a well-prescribed protocol in terms of rules and/or regulations to be adhered to in the identification of wildlife animal species on wildlife products traded, transported, and smuggled upon arrests suspects. Therefore, it is a finding of this Court that the failure of the Respondent's witnesses to prove to the Court that proper and acceptable 18 identification of the three pieces of dried meat was properly and scientifically done, casts grave doubt on the prosecution's case against the Appellant. Hammering the nail further on the importance of proper identification of animal species of dried meat, this Court draws inspiration from the decisions of the Court of Appeal on the identification of illicit drugs allegedly found with suspects. In the case of Omary Joachim vs Republic (Criminal Appeal No 536 of 2016) [2019] TZCA 621 (10 December 2019), it was held that: "Thus, it was in the best interest as, indeed, it was incumbent upon the prosecution to seek and adduce into evidence a report of a Government analyst with respect to the nature of the plants which were seized. As that was not done, the true nature of the seized plants which were the subject of the trial is a matter for conjecture. To say the least, the case for the prosecution fell short, much as, upon the admitted facts the offence oftransporting prohibited plants was not established." The said position was also reiterated in the case of Adam Abdallah Ramadhani vs Republic (Criminal Appeal No. 372 of 2020) [2024] TZCA 193 (19 March 2024). The Court of Appeal held that: "Going by the above position of the Court, it must be plain that, in order for a conviction on a piea of guilty to a charge of trafficking narcotic drugs to be sustained, in addition to proving that the piea was unequivocal, it must also be established that, the substance which the accused was 19 trafficking was indeed narcotic orpsychotropic. The inescapable conclusion from the foregoing observation is that, a mere admission by the accused person that he was trafficking narcotic or psychotropic substance without a report of a Government analyst regarding the nature of the said substance, is not sufficient to ground a conviction upon one's piea ofguilty." See also the case of Aldo Kilasi vs Republic (Criminal Appeal 466 of 2019) [2021] TZCA 537 (28 September 2021). In light of the above authorities, though unrelated to bushmeat animal species identification, they demonstrate unmistakably the paramount importance of proper investigation and identification of illicit item(s) allegedly found with a suspect and which the investigation authorities intend to use as exhibit in criminal trials and which would be the basis of the prosecution to secure conviction in the like cases. Otherwise, the charges in such kind of cases would, inevitably, crumble. Another issue worthy of discussing in this appeal is the issue of chain of custody. After reviewing the record of proceedings, there is no on-record document showing the chronology of movement of the relevant exhibits tendered in the trial Court to prove the case against the accused. The exhibits include the two knives and the three pieces of dried meat. What is available on record is that after the arrest of the Appellant and his conspirator on 27/05/2023, PW1 filled out a certificate of seizure which was admitted as exhibit Pl. However, no chain of custody document was filled. Then they took the Appellant and his conspirator to the Mugumu Police Station where the exhibits were, allegedly, labelled with police case No. 20 MUG/IR/1450/2023. PW1 also tendered the knives which were not in his custody and they were admitted as exhibit P2. PW2's testimony in this aspect was a reiteration of PWl's testimony. Moreover, in their testimony, PW1 and PW2 massively failed to establish even a simple and complete oral chain of custody. None of the arresting officers (PW1 and PW2) testified on what transpired at the Mugumu Police Station regarding the chain of custody of the exhibits. There is nothing on record that shows who, at the police station, received the said exhibits as an exhibit keeper for maintaining the integrity of the exhibits. This is a serious flaw on the part of the arresting officers, the exhibits were not handed over to any specific police officer. This means that they could have been easily tampered with. Furthermore, the testimonies of PW3 and PW4 were also of no help in establishing the chain of custody of the knives and the three pieces of dried meat. PW3 testified that he was called by PW4 on 29/05/2023 and was shown three pieces of wildebeest for valuation and identification from police case file number MUG/IR/1450/2023. PW4 on his part testified that on 29/05/2023 he was given the said case file by the OCCID to continue with the investigation, and it is in the said file he found that there were exhibits, namely; two knives and the three pieces of dried meat of a wild animal. In his testimony, he tendered the inventory form for the three pieces of dried meat which was admitted as exhibit P5. Therefore, in light of the record, it is not known who received the exhibits at the Mugumu Police Station and marked them on 27/05/2023. It is also unknown who handed over the said exhibits to the OCCID who also 21 handed over the same to PW4. Given the above, it is clearly demonstrated that the chain of custody was broken when they, allegedly reached, the police station taking into account that the exhibits were the items that could easily change hands. The position as regards the chain of custody of the exhibits is, in the first place, provided in the Police General Orders (hereinafter the 'PGO') of 2021 under PGO 229. Paragraph 16 of PGO 229 provides that: "Whenever an exhibit is passed from the custody of one officer to that of another, the officer who hands over the exhibit shall record in the presence of the latter officer the name, rank and number of the officer to whom he hands over the exhibit and the date and time of the handing over on the back of the Exhibit Label." Eventhough the arrests commenced with the conservation rangers, the provisions of the PGO will still have relevance in the course of investigation and prosecution as will be demonstrated shortly in this judgment. In addition to the above requirement of the PGO, the Court of Appeal has, on several occasions, restated the importance of maintaining a proper chain of custody. For instance, in the case of Wallenstein Alvares Santillan vs Republic (Criminal Appeal 68 of 2019) [2022] TZCA 516 (22 August 2022) held that: "It is settled that the chain of custody must be clearly indicated to establish that the exhibits were not tampered with (see Abuhi Omar Abdallah and Three Others v. The Republic, Criminal Appeal No. 28 of 2010 (unreported). It is also settled that it is important to have 22 the chronological documentation and/ or paper trail showing the seizure, custody, control, transfer, analysis and disposition ofevidence to guarantee that the said evidence relates to the alleged crime [see Paulo Maduka and 4 Others v. The Republic, Criminal Appeal No. 110 of2007(unreported)]." Moreover, in Wallenstein Alvares Santillan vs Republic (supra) the Court held that: "Indeed, in Chukwudi Denis Okechukwu and Three Others v. The Republic, Criminal Appeal No. 507 of 2015 (unreported), the Court stated that the rationale for satisfactorily establishing a chain of custody from the time of the seizure of the exhibit to the time it is tendered in court at the trial as an exhibit include: - "One, to ensure the integrity of the chain of custody to eliminate the possibility of the exhibit being tampered with. Two, to establish that, the alleged evidence is in fact related to the alleged crime in which it is being tendered, rather than for instance having been planted fraudulently to make someone guilty." Likewise, this Court, as argued by the Respondent, is aware that the chain of custody can also be established by way of oral evidence. See the case of Sano Sadiki & Another vs Republic (Criminal Appeal No.623 of 2021) [2023] TZCA 17476 (9 August 2023). However, as demonstrated above, at the trial Court, the prosecution witnesses massively failed to establish an oral chain of custody because the movement of the exhibits 23 broke when they reached the Mugumu Police Station, and the unknown received the exhibits. See also the case of Jumanne Galiyela Ghati and Another vs Republic (Criminal Appeal No. 21 & 28 of 2021) [2024] TZCA 991 (28 October 2024). Moreover, this Court is also alive to the well-established position regarding the need for a documented or intact (unbroken) chain of custody on items that can easily change hands as held in the cases of Issa Hassan Uki v. Republic, Criminal Appeal No. 129 of 2017 (unreported) Kadiria Said Kimaro v. Republic, Criminal Appeal No. 301 of 2017. In the present case, both exhibits could easily change hands from one person to another and could easily be replaced and or tampered with, and thus a documented and unbroken chain of custody was necessary. It follows that, in the absence of a proper chain of custody, the trial Aourt wrongly admitted exhibits P2 and P5 purportedly proving that the Appellant was found with the government trophy and the weapons in the national park. The same are hereby expunged off the record. Before being quiescent this Court deems it appropriate to, albeit briefly, comment that according to the evidence on record, exhibit P4, a map showing that the Appellant and the conspirator were arrested in the Serengeti National Park, was tendered by PW4, a police officer. PW4 was not the person who prepared the map, Daniel Bora was the expert who drew the map and thus a material witness but was not called to testify as a witness and there was no explanation as to why he was not called to testify. The testimony of Daniel Bora was very key, especially in establishing the first count of unlawful possession of weapons in the National Park and 24 his expert opinion was relevant under section 47 of the Evidence Act, Cap. 06 R.E. 2019 in establishing whether the Appellant, according to the coordinates allegedly taken by PW1, was found with weapons in the Serengeti National Park as alleged. Since the map drawing expert was a material witness and he was not called to testify for no reason, this Court draws adverse inference against the Respondent's case, see the cases of Simon Edson @ Makundi vs Republic (Criminal Appeal 5 of 2017) [2020] TZCA 1730 (18 August 2020), Aziz Abdallah v. R [1991] T.L.R 71 and Allan Duller vs Republic (Criminal Appeal 367 of 2019) [2021] TZCA 689 (23 November 2021) where the Court of Appeal held that: ' The principle of adverse inference finds its basis on an assumption that the evidence which could be and is not, produced would, if produced, be unfavorable to the person who withholds it.' It follows that exhibit P4 has no evidential value for want of the testimony of the relevant expert on how it was prepared whilst relying on coordinates whose chain of custody (audit trail) was not established. Moreover, it is clear from the record that exhibits P4, being electronic evidence, did not meet the requirements of sections 18(2), 18(3), and 19 of the Electronic Transactions Act, 2015, and thus its authenticity is questionable. Therefore, in totality, the trial Court should not have relied on exhibit P4 to convict the Appellant. In light of the above, it is a finding of this Court that the Respondent failed to prove the case against the Appellant beyond reasonable doubt as 25 required by section 3(2)(a) of the Evidence Act, Cap. 6 R. E. 2019. Also, see the cases of Six Ilanga @ Msaka vs Republic (Criminal Appeal No. 484 of 2020) [2024] TZCA 95 (23 February 2024), and John Dickson @ Ngongole vs Republic (Criminal Appeal No. 477 of 2021) [2024] TZCA 144 (29 February 2024). Under the circumstances, and given that the above-considered grounds are sufficient to dispose of the appeal, this Court will not venture into the determination of the remaining grounds of appeal as it would be an exercise in vainness. Therefore, this Court finds that the Appellant (Thomas Nchagwa @Mtugutu) was wrongly convicted by the trial Court. Therefore, this Court hereby quashes and nullifies the finding of guilt and conviction of the Appellant, further sets aside the sentence imposed by the trial Court and acquits the accused of the offences levelled against him. The Court further sets the Appellant at liberty and, unless held for any other lawful cause, orders his immediate release from the detention facility where he is currently held. It is so ordered. Dated at 5th day of February 2025. K. I. kafanabo Judge 26 The Judgment was delivered in the presence of Mr. Michael Kayombo, a learned State Attorney for the Respondent and in the presence of the Appellant. Right of Appeal explained. * K. I. Kafanabo Judge 05/02/2025 27